Partly allowed

Harish Kumar v. the State of Karnataka

Karnataka HC1 Mar 2023CRL.A/822/2017

Case brief

AI extract

What is this about?

The High Court altered the conviction of three accused from Section 302 IPC (life imprisonment) to Section 304 Part I IPC (10 years rigorous imprisonment) for a murder arising from a sudden quarrel and provocation, applying Exception 1 of Section 300 IPC.

What did the court decide?

Conviction under Section 302 r/w 34 IPC altered to Section 304 Part I IPC; sentence reduced to 10 years rigorous imprisonment with fine of Rs.25,000/- each.

Harish Kumar Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R

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DATED THIS THE 1^ST DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE B.VEERAPPA AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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CRIMINAL APPEAL NO. 822 OF 2017

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C/W

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CRIMINAL APPEAL NO. 1301 OF 2017 AND CRIMINAL APPEAL NO. 605 OF 2018

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IN CRL. A. No.822/2017

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BETWEEN:

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Digitally signed by USHA NAGENAHALLI SHANMUKHAPPA Location: High Court of Karnataka

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HARISH KUMAR, S/O GAVI KUMAR @ GAVIGOWDA, AGED 27 YEARS, OCC:BUSINESS, R/AT MULLURU VILLAGE, GOPALAPURA POST, JAYAPURA HOBLI, MYSURU TALUK, MYSURU DISTRICT-570008.

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…APPELLANT

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(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL A/W SRI LETHIF B., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY THE POLICE OF ASHOKAPURAM POLICE STATION, MYSURU-570008. REPRESENTED BY

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THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560001.

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…RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

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IN CRL. A. No.1301/2017

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BETWEEN:

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RAVIKUMAR @ AMASE, S/O MAHADEV, AGED ABOUT 32 YEARS, No.467, 2^ND CROSS, 'B' BLOCK, MAHADEVAPURA, MANANDAVADI ROAD, MYSURU -570008.

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…APPELLANT

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(BY SRI H.S. SURESH, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ASHOKAPURAM POLICE STATION, MYSURU DISTRICT. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560001.

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…RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

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IN CRL. A. No.605/2018

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BETWEEN:

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PRADEEP @ JAMBOO @ RAVI, S/O LATE S.K. MURTHY AGED ABOUT 32 YEARS,

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R/AT No.371, 1^ST CROSS, 'B' BLOCK, MAHADEVAPURA, MYSURU DISTRICT-570008.

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…APPELLANT

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(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL A/W SRI LETHIF B., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ASHOKAPURAM POLICE STATION, MYSURU DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX BUILDING, BENGALURU-560001.

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…RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

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THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2) OF CR.P.C BY THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 19.04.2017 AND ORDER OF SENTENCE DATED 21.04.2017 PASSED BY THE LEARNED 1^ST ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.138/2013 - CONVICTED THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 R/W 34 OF IPC. THE APPELLANTS/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/-.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Criminal Appeal No.822 of 2017 is filed by accused No.1Harish Kumar; Criminal Appeal No.615 of 2018 is filed by accused No.2-Prdeep @ Jamboo @ Ravi; and Criminal Appeal No.1301 of 2017 is filed by accused No.3-Ravi Kumar @ Amase. All these three appeals are filed by accused against the impugned judgment of conviction and order of sentence dated 19^th November, 2017 passed in SC No.138 of 2013 by the I Additional Sessions Judge, Mysuru convicting accused 1 to 3 for imprisonment of life under the provisions of Section 302 read with Section 34 of Indian Penal Code with fine of Rs.5,000/each, in default of payment of fine, accused shall undergo simple imprisonment for six months each; and acquitted accused 1 to 3 for offences punishable under Section 201 read with Section 34 of Indian Penal Code.

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It is the case of prosecution that on the basis of the complaint dated 19^th October, 2012 filed by PW1-Suresha, father of the deceased, that on 18^th October, 2012 at about 10.00 pm, all the accused, with a common intention of committing murder of deceased-Yogesh on the background of

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old enmity, accused No.2 called deceased on his cell phone asking him to come near Petrol Bunk on Kantharaj Urs Road as they intend to discuss in person. All the accused were waiting in the car near Government Nature Cure Hospital with a chopper and one long. The deceased, suspecting foul play of the accused, called his friend PW2 near the spot. It is the further case of Prosecution that PW1-father of the deceased has also followed his son, suspecting the situation. When the deceased came near the Government Nature Cure Hospital, accused No.2 started to quarrel with deceased-Yogesh and accused No.3 caught hold the deceased tightly at his shoulder level and accused No.1 brought long chopper that was kept in the car and forcibly chopped the head of the deceased from the back. Accused No.2 brought another chopper from the car and chopped on the head of the deceased. At that time, PW1-father of the deceased, rushed to the spot screaming aloud and the accused fled the spot in the car along with weapons, towards Kuvempunagara. Then PW1 and PW2, with the help of PW4Ramachandra shifted injured-Yogesh to the nearby Apollo Hospital for treatment, but the said Yogesh died on 19^th October, 2012 at 3.30 am due to severe head injuries without

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responding to the treatment. All the accused went to Malavalli and changed their dress with the help of one of the friends of accused No.2 and in order to cause disappearance of evidence, they have burnt their dresses that they wore at the time of commission of offence. Accordingly, jurisdictional police registered Crime No.71 of 2012 under the provisions of Section 302 read with Section 34 of Indian Penal Code on 19^th October, 2012 early morning at about 5^o clock, in BGS Apollo Hospital on the basis of the complaint given by PW1-father of the deceased, which was received at 5.15 am. After investigation, the jurisdictional police filed charge sheet against the accused under the provisions of Section 302, 201 read with Section 34 of Indian Penal Code.

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Since the case is triable by Sessions Judge, the matter was committed to the Sessions Judge and the learned Sessions Judge secured the presence of accused and framed charge on 14^th September, 2013 under the provisions of Sections 302 and 201 read with Section 34 of Indian Penal Code and read over the same to the accused in the language known them. The accused pleaded not guilty and claimed to be tried.

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In order to establish the case, the prosecution, in all, examined 17 witnesses as PW1 to PW17 and produced material documents as per Exhibits P1 to P30 and material objects MO1 to 11. During the course of evidence of prosecution, Exhibit D1 was got marked to cross the witnesses on behalf of accused. After completion of evidence of prosecution witnesses, statements of accused, as contemplated under the provisions of 313 Code of Criminal Procedure, were recorded. Accused denied incriminating circumstances made against them by prosecution witnesses, but they have not chosen to adduce any defence evidence on their behalf.

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Based on the aforesaid pleadings, the learned Sessions Judge framed following points for consideration:

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"1. Whether the death of deceased Yogesh is homicidal death?

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Whether the prosecution proves beyond reasonable doubt on 18.10.2012, at about 10.30 pm, near Government Nature Cure Hospital all these accused with their common intention to commit murder of deceased Yogesh on the background of old enmity, picked up quarrel and accused No.3 caught hold of the

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deceased, accused No.1 forcibly chopped the head of deceased by long and accused No.2 also chopped on the head of deceased with chopper and thereby, committed an offence of murder?

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Whether the act of accused in causing death of deceased Yogesh is culpable homicide amounting to murder which is punishable under Section 302 r/w 34 of I.P.C.?

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Whether the prosecution proves beyond doubt reasonable doubt that after this incident, all the accused with their common intention to cause disappearance of evidence of offence and to screen themselves, they burnt their blood stained dresses which worn at the time of commission of the offence and thereby, committed an offence punishable under Section 201 r/w 34 of I.P.C.?"

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Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution proved the case beyond all reasonable doubt that the death of deceased-Yogesh is a homicidal death and all the accused persons, with a common intention, committed murder of deceased-Yogesh on the background of old enmity by picking

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up quarrel and the accused No.3 caught hold of the deceased, accused No.1 forcefully chopped the head of the deceased by a long chopper and the accused No.2 also chopped the head of the deceased with a chopper and thereby committed the murder of the deceased which is punishable under the provisions of Section 302 read with Section 34 of Indian Penal Code. Learned Sessions Judge, further recorded a finding that the prosecution failed to prove beyond reasonable doubt that after the incident, all the accused, with a common intention to cause disappearance of the evidence of the offence, screened themselves by burning their bloodstained dresses which they wore at the time of commission of offence and thereby committed offence punishable under the provisions of Section 201 read with Section 34 of Indian Penal Code. Accordingly, learned Sessions Judge, by the impugned judgment of conviction and order of sentence, convicted accused 1 to 3 for imprisonment of life for the offences punishable under the provisions of Section 302 read with Section 34 of Indian Penal Code with fine of Rs.5,000/- each and acquitted accused 1 to 3 for offence punishable under Section 201 read with Section 34 of Indian Penal Code. Hence, these appeals are filed by

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accused against their conviction under the provisions of Section 302 read with Section 34 of the Indian Penal Code.

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The respondent-State has not filed any appeal against the acquittal of the accused under the provisions of Section 201 read with Section 34 of Indian Penal Code.

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We have heard learned counsel for the parties.

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Sri Sandesh J. Chouta, learned Senior Counsel appearing on behalf of Sri B. Lethif, counsel for accused 1 and 2, vehemently contended that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused 1 and 2 under provisions of Section 302 read with Section 34 of Indian Penal Code is erroneous and contrary to material on record and is accordingly liable to be set aside. He would further contend that the prosecution failed to prove whether the alleged death of deceased-Yogesh is either homicidal or accidental. The prosecution has produced Exhibit P23-inpatient record of Apollo Hospital issued by PW13-Doctor who conducted postmortem, at the earliest point of time, which clearly mentions the alleged incident is an accidental one. The learned Sessions Judge

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failed to notice the contradiction in the evidence of PWs1 and 2, who are close relatives of the deceased and are interested witnesses and there is no other independent witness to the case of prosecution. He would further contend that the evidence of PWs1 and 2 do not inspire the confidence of the Court to pass judgment of conviction and the circumstantial evidence like motive, last seen theory, are not proved. The evidence of PWs1 and 2, who are interested witnesses, cannot be believed. He would further contend that based on Exhibits P28 to P30voluntary statements of accused, recovery of MOs9, 10 and 11, cannot be a basis for conviction.

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He would further contend that Exhibit P19-sketch does not depict any light, as the incident took place at about 10.00 pm, as admitted by PW1 who is the father of the deceased. He would further contend that though there is no reference with regard to PW2-Manju in the complaint Exhibit P1, but in the evidence, PW1 introduced the name of Manju. The same is admitted by PW1 in his cross-examination. He would further contend that the voluntary statement of PW2 was recorded on 29^th October, 2012, wherein PW2 has deposed about the presence of PW1. He would further contend that

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Exhibits P28 to P30-voluntary statements of the accused, were recorded and that recovery was made after ten days, cannot be accepted. He would further contend that, admittedly, call detail records are not produced by the Prosecution to prove with regard to the assault made by accused 1 and 2. He further contended that Exhibit P2-MLC Register clearly depicts the alleged history of assault by a group of three persons, but names are not mentioned. He would further contend that Exhibit-P20 recovery of PF form and not a mahazar of recovery as contemplated under Orders 2, 3 and 4 of Order 1287 of Karnataka Police Manual having not been followed, thereby it cannot be called a mahazar in the absence of ingredients as mentioned in Order 1287 of the Police Manual and the same cannot be considered as recovery.

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He would further contend that Sketch-Exhibit P17 does not contain details as contemplated under Order 1239(c), 1241, 1243(e)(f), 1243(c) (g), 1247, 1249 and 1250(iii) of the Karnataka Police Manual, and in the absence these ingredients, Exhibit P17 cannot be considered as sketch. He would further contend that the voluntary statement of accused persons as per Exhibits P28 to P30, clearly depict that when the deceased

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came along with PW2 to the place of incident, the deceased provoked accused by using filthy language, thereby the accused persons lost self-control and the unfortunate incident happened which has resulted in the death of the deceased-Yogesh, which clearly attracts exception 4 of Section 300 Indian Penal Code. Thereby, it is the clear case that fall under the provisions of Section 304 Part-ii of Indian Penal Code. He would further contend that the voluntary statement of accused as per ExhibitsP28 to P30 are verbatim of the evidence of Investigating Officer-PW17, as admitted by him. PW1 in his statement at paragraph 25, specifically admitted that he alone was following his son at the distance of 100 feet, who was walking to the scene of occurrence, and has specifically stated that accused No.1 has caught hold of the deceased, about which he has not stated in his examination-in-chief. Thereby, learned Senior Counsel would submit that there are contradictions of the alleged witness by PW1 and PW2 and thereby, their evidence cannot be relied upon.

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He would further contend that, admittedly, the unfortunate incident happened on 18^th October, 2012 at 10.00 pm and the statement of PW2 was recorded on 29^th October,

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2012, after a lapse of ten days and absolutely no explanation was offered for the delay. He would further contend that though PW1 stated that he had noticed the incident in the dark from a distance of 100 feet, he could not notice the registration number of the car. He further stated that deceased-Yogesh is not in the habit of consuming alcohol, but Exhibit P22 - RFSL report discloses about the presence of Ethane alcohol in the stomach of deceased. He would further contend that the rough sketch Exhibit P19, though not contain any ingredient as contemplated under Order 1239(c), 1241, 1242 (e)(f), 1243(c)(g), 1247, 1249 and 1250(iii) of the Karnataka Police Manual, so also, does not indicate any street light or electric pole in the place of incident, thereby clear sketch of the spot of incident is not produced. According to PW1, the evidence indicates that the deceased got a telephone call informing him to come near Shyam Studio, but Exhibit P19-sketch does not depict anything about the Studio.

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Learned Senior Counsel would further contend that

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the evidence of PW1 indicate that he was standing near the cross road leading to Saraswathipuram. But in the crossexamination, PW2 who also claim to be the eye-witness,

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deposed that he was standing near Shyam Studio and noticed accused No.3 at the place of the incident. But the sketchExhibit P19 does not speak anything about the Studio. He would further contend that PW2 accompanied the deceased to the spot as a rider and admits that Apollo Hospital is within 200 meters distance, and it is further deposed that though after the incident, PW2 regularly visited the hospital, so also, the Police Station, but Police did not record his statement. The delay by the Investigating Officer-PW17 was because of providing bando bust duty for Dasara Festival, cannot be a ground and therefore, he contend that as PW2 is not the signatory and his statement was not recorded to the inquest proceeding Exhibit P18, the conduct of PW2 cannot be considered as a gospel truth, thereby there is inconsistency and contradiction in the evidence of PWs1 and 2 and thereby, their evidence cannot be relied upon. Therefore, he sought to allow the appeals filed by accused 1 and 2.

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In support of his contentions, learned Senior

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Counsel relied upon the dictum of the Hon'ble Supreme Court in the case of THULIA KALI v. STATE OF TAMILNADU reported in 1972(3) SCC 393 and placed reliance on paragraph 12 with

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regard to delay in filing the first information report. In that case, after more than 20 hours of occurrence of the incident, the Court has proceeded against the prosecution. He would further contend that as per Exhibits P28 to 30-voluntary statements of the accused, recovery was made after ten days cannot be accepted in view of the dictum of the Hon'ble Supreme Court in the case of SUBRAMANYA v. STATE OF KARNATAKA reported in 2022 SCC OnLine 1400 and placed reliance on paragraphs 83 and 84. In support of his contention with regard to statement recorded under the provisions of Section 313 of Code of Criminal Procedure, the learned Senior counsel relied upon the dictum of the Hon'ble Supreme Court in the case of SHAIKH SATTAR v. STATE OF MAHARASHTRA reported in 2010(8) SCC 430 and referred to paragraphs 35 and 36 of the judgment. Therefore, the learned Senior Counsel sought to allow the appeals.

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Sri H.S. Suresh, learned counsel appearing for accused No.3 in Criminal Appeal No.1301 of 2017, while adopting the arguments advanced by the learned Senior Counsel for accused 1 and 2, would submit that the learned Sessions Judge proceeded and convicted the accused No.3

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mainly on the basis of evidence of PWs1 and 2, which are contradictory to each other and the learned Sessions Judge, in the absence of any circumstantial evidence like motive, last seen theory, so also in the absence of any document produced to believe corroboratory evidence of PWs1 and 2. He would further contend that when the prosecution failed to prove the disappearance of clothes of accused, the learned Sessions Judge acquitted accused 1 to 3 for the offence punishable under Section 201 read with 34 Indian Penal Code. Admittedly, the State has not filed an appeal and thereby, the learned Sessions Judge is not justified in convicting accused No.3. Therefore, he sought to allow the appeal.

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Per contra, Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor No.2 appearing for the respondent-State, while justifying the impugned judgment of conviction and order of sentence, would contend that the eyewitnesses PW1, who is the father of the deceased; and PW2, who is the friend of the deceased, in categorical terms, would depose that the assault made by accused persons, viz. the accused No.3 caught hold of the deceased tightly at the shoulder level and accused No.1 brought a long chopper from

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the car and forcibly chopped the head of the deceased and accused No.2 brought another chopper from the car and chopped the head of the deceased. There is consistency in the evidence of eye-witnesses and thereby the learned Sessions Judge has rightly convicted accused 1 to 3. He would further contend that PW17-Investigating Officer, has specifically stated on oath with regard to recovery of MOs.9, 10 and 11 at the instance of accused. The evidence of Investigating OfficerPW17 would corroborate the evidence of PWs1 and 2. He would further contend that Doctor-PW16 who issued Exhibit P21Postmortem report, clearly depicts that the death of the deceased is homicidal death. He would further contend that PW11 who is a mahazar witness, recovered mahazar Exhibit P20 at the instance of the accused.

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17. He would further contend that PW9 the FSL Officer

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who deposed specifically on oath in paragraph 4 that after analysis of items 1 to 10, items 5 to 10 contains blood group of ‘B’ and Exhibit P16 is the report of FSL Officer which depicts the presence of blood on items 1, 4 to 9 and items 5 to 10 was stained by ‘B’ blood group, thereby the prosecution proved the case beyond all reasonable doubt with regard to involvement of

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accused 1 to 3 in the death of the deceased. He further contend that the motive of murder is only the earlier enmity between the parties as stated by PWs1 and 2; and recovery of MOs 9, 10 and 11 at the instance of the accused all prove that the accused 1 to 3 committed the murder of the deceased and thereby, the learned Sessions Judge is justified in convicting the accused under the provisions of Section 302 read with Section 34 of the Indian Penal Code. He would further contend that since the prosecution failed to prove the case that with common intention of causing disappearance of evidence the offence the accused screened themselves, burnt their bloodstained dresses which they wore at the time of committing of offence, the learned Sessions Judge was justified in acquitting the accused under the provisions of Section 201 read with Section 34 of Indian Penal Code, thereby the State was of the considered opinion that there was no need to file appeal. Hence, learned Additional State Public Prosecutor sought to dismiss the appeals filed by the accused.

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In view of the aforesaid rival contentions under the learned counsel appearing for the parties, points that would arise for consideration in present appeals are:

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(i) whether the learned Sessions Judge is justified in convicting accused 1 to 3 for the offence punishable under the provisions of Section 302 read with Section 34 of Indian Penal Code? And

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(ii) whether the accused made out a case to modify the impugned judgment of conviction and order of sentence in the facts and circumstances of the case?

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We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and carefully perused the entire material on record including the original records.

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This Court being the Appellate Court, in order to reappreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon.

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i) Complainant PW1-Suresh who is the father of the deceased and eye-witness, reiterating the averments made in the complaint, deposed that the

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deceased and accused were friends for the past four years and accused No.1 and the deceased had a quarrel about three months back. The case was registered wherein the deceased damaged the glass of the car belonging to Hemanth and PW1-father of the deceased, paid Rs.10,000/- to accused No.1. He would further depose that accused No.2 called him over phone on the date of incident and PW1, sensing suspicion, followed the deceased, maintaining distance and seen the occurrence of incident from a distance of 100 feet. Thereafter, along with PW2, he shifted the injured to the hospital. PW6 has written the complaint which is signed by PW2 to the spot mahazar. In the crossexamination he admits that PWs2 & 4 and the deceased are friends. He admits that his house from the spot of incident is at a distance of one furlong and noticed the incident from a distance of 100 feet and has not stated in the complaint. He denied that the place of incidence is a highly dense area and nobody comes for rescue. He identified

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Exhibit P1-complaint, Exhibit P2-spot mahazar, Exhibits P3 to P6-Photographs and also identified MO1-bloodstained mud; MO2-sample mud; MO4chappal; MO9-long; and MO10-chopper, thereby he supported the case of the prosecution.

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ii) PW2-Manjunatha @ Manjappa, who is the eyewitness to the alleged incident has deposed that he know PW1 and the deceased from his childhood and further deposed that on 18^th October, 2012 at about 10.00 pm, the deceased called him over phone and told him to accompany him to Shyam Studio, and he accompanied him to the Shyam Studio on his scooter as a rider and the deceased was the pillion rider. He has admitted that there was a dispute among the accused and the deceased. He has also deposed that he has seen PW1 at 100 feet distance and only after noticing the incident, he came to the spot and shifted the injured to the hospital. He is aware that the complaint has been registered against the accused with regard to damaging the glass of the car about three months back. His

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statement was recorded on 29^th October, 2012, after lapse of ten days and he is not a signatory to the inquest proceedings. He admits that he daily visited the police station, but police did not record any statement as the police officer was busy with Dasara bando bust duty. In cross-examination, he admits that at a distance of 200 feet he noticed the incident. He has also deposed that hospital is about 20 meters from the place of incident; police did not record the statement of witnesses and recorded his statement only on 29^th October, 2012. He has also deposed that he used to visit the police station every day. Thereby, he supports the case of the prosecution.

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iii) PW3-Bhagyamma mother of the deceased who is the hearsay witness, deposed that deceased and accused are friends and deceased is not in the habit of consuming alcohol and thereby supports the case of the prosecution.

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iv) PW4-Y K Ramachandra who shifted the injured to BGS Apollo Hospital in his autorickshaw. He further

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deposed that on seeing the gathering at the spot, he reached the place and assumed that it is an accident. Exhibit D1 is the statement dated 29^th October, 2012 and he admits that he noticed PWs1 and 2 at the spot. In the cross-examination he has stated that he has not mentioned about the incident occurred opposite to petrol bunk and adjacent to government hospital. He has stated that people had gathered at the spot, thereby supported the case of the prosecution.

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v) PW5-N Mahesh who deposed about the previous enmity between the deceased and accused and turned hostile. His statement was recorded on 20^th October, 2012 as per Exhibit P14. In the crossexamination, he totally denied the about the previous enmity thereby treated as hostile.

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vi) PW6-R Hemanth Kumar, who has written the complaint as per the instructions of PW1 and signed the complaint, admitted that he know PW1, the deceased and also accused and he is signatory to

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Exhibit P2 spot mahazar. He identified Exhibit P1 and P2 and MOs 1 to 4. In the cross-examination, he admit that he is the friend of the deceased. Except being signatory to Exhibit P2, he has not stated anything before the police and has also stated that he is making the statement for the first time before the Court that he has shifted the injured to the Apollo hospital and thereby supported the case of prosecution.

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vii) PW7-Shashidhar is signatory to Exhibit P15 recovery of clothes from the dead body of deceased, who has stated in the cross-examination that he denies the statement and does not know the contents of Exhibit D1, the police have taken his signature and thereby turned hostile.

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viii) PW8-Ziayulla Sharif, Police Constable, who is signatory to Exhibit P15-seizure mahazar and brought articles to the police station from the hospital as per MOs 5 to 8 (articles from the body of the deceased), supports the case of the prosecution.

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ix) PW9-Radha S, Scientific Officer who issued the FSL report as per Exhibit P16 wherein there are 18 articles sent to FSL and blood stain was detected in the sample mud saying that item No.1, 4 to 10 are stained with human blood and items 5 to 10 were stained with blood of ‘B’ group and item No.1 to 4 are material objects and therefore, supports the case of prosecution.

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x) PW10-C.R. Ananda, retired police officer, on receipt

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of memo from the hospital, had been to the hospital. He has deposed that the father of the deceased filed written complaint and he received the same at about 12.15 pm and registered Crime No.71 of 2012 and he is the witnesses for spot mahazar Exhibit P1 and photographs Exhibits P3 to 6, thereby, supports the case of the prosecution.

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xi) PW11-Puttachannegowda, who is the signatory to Exhibit P20-seizure mahazar of MOs 9, 10 and 11 i.e. long, chopper and black colour bag respectively, deposed that they are recovered from the car which

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was parked near Varuna canal dam/Don Bosco School compound and taken photographs Exhibits P11 to P13 and prepared mahazar Exhibit P20 and admitted that it is not a joint recovery. In the cross-examination, he admitted that for the first time he has stated before the Court that the car was parked near Varuna Canal. He admitted that the said place is a public place where people will roam around all the time and in the evidence he never said about recovery of stained weapons. Exhibit P20 is the seizure mahazar and MOs 9 to 10 are the weapons recovered and thereby, he supports the case of the prosecution.

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xii) PW12-T Ravigowda, who is signatory to inquest mahazar Exhibit P18 and identifies photographs Exhibits P7 to P10, supported the case of prosecution.

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xiii) PW13-Dr. M.P. Kumar, who conducted postmortem of the deceased as per Exhibit P21, from 11.35 hours to 12.35 hours on 19^th October, 2012 and

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found two injuries on the dead body and issued postmortem report as reserved pending chemical analysis report of FSL and found the presence of Ethane alcohol and given opinion on 04^th January, 2013 that the death was due to coma, as a result of

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head injury sustained and presence of alcohol detected at RFSL. He issued Exhibit P21 Postmortem report. Exhibit P22 RFSL report and Exhibit P23 Inpatient records of Apollo Hospital and he also identified material objects 9 and 10. In the cross-examination he has admitted that he has not mentioned the depth of the injuries and admitted that he corrected IP number in the postmortem report and did not put his initials. It is admitted in the cross-examination that certain dates are required to give opinion. The cause of injury is not mentioned. He has admitted that the in-patient record has mentioned only one injury and thereby supported the case of the prosecution.

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xiv) PW14-Sujatha K.M., Scientific Officer, who received the articles from Police and issued Exhibit P22 to

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P24 and opined that Ethane alcohol found in articles 1 and 2 thereby support the case of the prosecution.

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xv) PW15-Dr S Jayasudha, who treated the deceased and as per the advice of PW16, she has issued death certificate Exhibit P24, the medical certificateExhibit P25 mentioning cause of death, thereby support the case of the prosecution.

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xvi) PW16-Dr. Ramesh Ranganathan, who treated the deceased and conducted CT Scan which is marked as Exhibit P23, which is the inpatient record contain 49 pages and Exhibits P7 to 10 the photos taken after stitching the wounds. In cross-examination, he admits that the head of the deceased was washed by using saline. He further stated that Exhibit P4 brought directly from the accident scene and there is no mention of the would in centimeter and there is over-writing as regards history of injury, "RTA" has been erased and mentioned as "assault" and mentioned only with regard to injury

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No.1 and had cardiac arrest and thereby, support the case of the prosecution.

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xvii) PW17-K.R. Marisidda Shetty, Investigating Officer, from 19^th October, 2012 after investigation by PW10-C.R. Anand, deposed on the confession statement of accused No.1 as per Exhibit P28, 29 and 30 recorded and joint report has been made. In the cross-examination at Exhibit P23, he admitted that the injured was brought from the accident scene and mentioned it as RTA. The statement of accused as per Exhibits P28 to 30 was recorded. Based on the aforesaid material on record, the learned Sessions Judge convicted the accused for the homicidal death of the deceased under provisions of Section 302 read with Section 34 of Indian Penal Code.

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The gist of complaint, as per Exhibit P1 dated 19^th October, 2012 is that, both his son and accused are friends for more than four years and they used to come to their house on festival days and used to have food. It is further alleged that

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for the last three months, accused persons, joining with other friends, picked up quarrel with deceased-Yogesh and he damaged the glass of the car of accused No.1. Then complainant called his son and pacified them. It is further alleged that on 18^th October, 2012, when the complainant was at home after finishing his dinner, his son received a phone call on his cell phone from one Harish, who told him to come near the Petrol Bunk situated at Kantharaj Urs Road. The deceased informed PW1 and left home. The complainant, being the father, smelling suspicion, followed his son. When the said Yogesh reached Government Nature Cure hospital, his friends, by name Harish and Jamboo got down from the car and picked up quarrel with the deceased and accused No.3-Ravi caught hold of the deceased and Harish assaulted on the backside of the head of the deceased and Jamboo assaulted on the back of

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the head of the deceased with chopper. The complaint screamed and ran to the spot, thereby the accused, along with the weapons, fled the scene in their car and the alleged incident took place at about 10.00 pm and the complainant could not notice the car number. Thereafter, his son was shifted to Apollo Hospital in an autorickshaw by PW4, and the doctor gave

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treatment. In spite of the same, the injured not responding to the treatment, died on 19^th October, 2012 at 3.15 am and declared dead. Accordingly, the jurisdictional police registered a case. A careful perusal of the evidence of PWs1 and 2, clearly depicts that the deceased and accused were friends for four years and the accused used to come to the house of the deceased and PW1 on festival days and used to have food. It is also not in dispute that earlier deceased Yogesh has damaged the glass of car of accused No.1 and PW1 pacified by paying Rs.10,000/-. It is also not in dispute that according to PW1, one of the accused called the deceased on 18^th October, 2012 and the deceased went by walk. PW1-father also followed his son. But PW2, another alleged eye-witness, depose that himself and deceased went on two-wheeler. As per the complaint the deceased went to place by walk as it is at the distance of one furlong, PW1 deposed that he has noticed the incident from a distance of 100 feet in the dark night and he could not notice registration number of the car. Though according to PW1, accused No.1 had called the deceased over phone, but no call details are produced. Though learned Additional SPP submits that it is a mistake on the part of the

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investigating officer, the fact remains that no document is produced. According to PW1, deceased is not in the habit of consuming alcohol, but FSL report Exhibit P22, disclose about the presence of Ethane alcohol in the stomach of the deceased. If the injured is assaulted by accused, the blood also could have

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stained the clothes of PWs1 and 2 as well as the accused. Admittedly, the cloth of accused, according to the allegation of the prosecution, was burnt by accused and as the same was not proved by the prosecution, thereby all the accused are acquitted for the offence punishable under the provisions of Section 201 read with Section 34 of Indian Penal Code. The police have not collected clothes of PWs1 and 2. According to Exhibit P1 complaint and evidence of PW1, the incident occurred

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in dark night and same corroborated with rough sketch produced as Exhibit P19, does not indicate anything with regard to street light or electric pole at the place of the incident. PW1 was not able to identify the registration number of the car, he has given complaint only on the basis of earlier intimacy between the deceased and accused as accused used to come to the home of deceased on the occasion of festival days, as stated by PW1. There is inconsistency in the statement of PW1

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who deposed that he was standing near the studio which is situated on the cross road proceeding towards Saraswathipuram. Whereas, the PW2 deposed that when they were standing near Shyam Studio, he has noticed accused reaching the place of incident. But, the sketch does not depict the same. There is inconsistency and contradiction between the evidence of two eye-witnesses.

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It is also not in dispute that PW2 accompanied the

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deceased on his scooter as a rider and the deceased was a pillion rider. But his statement was recorded on 29^th October, 2012, after ten days of occurrence of the incident. No explanation is forthcoming from the prosecution side for the delay in recording the statement of PW2. According to PW1, he alone was following the deceased from a distance. But according to PW2, he and deceased went to the spot on Honda Activa scooter and he picked the deceased from the house of PW1. When PW1 noticed the incident, he has not deposed about the presence of PW2 along with the accused, but only deposed that he only saw the accused assaulting the deceased and further deposed that he and PW4 shifted the deceased to the hospital and PW1 and PW2 came back to the house for the

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purpose of money to meet the expenses of hospital. According to PW2, he has not seen the car as it was dark night. There was a delay in recording the statement of PW2. As stated by PW2 he used to go police station every day, but for want of investigation officer, he statement was not recorded. The same was also deposed by investigating officer PW17 that he was on the duty of bando bust for Dasara festival. It hardly makes out a case to believe the statement of PW2 that when PW17 is in police station, PW2 never comes to Police Station and when PW17 is in Police Station, PW2 never went to station. What prevented the Investigating Officer, when he was in police station, to summon PW2 and record his statement, is not forthcoming. Recording the statement after ten days is deliberate on the part of the Investigating Officer.

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Though learned Additional SPP contend that it is a mistake on the part of the investigating officer, the same cannot be a ground to ignore the evidence of PW2 and PW17. By a careful reading of evidence of PWs1 and 2, the unnatural conduct of PWs1 and 2 who are eye-witness to the incident is concerned, PW2 is eye-witness and not witness for inquest proceedings and the statement recorded, as already stated,

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after a lapse of ten days and he has not shifted the injured not filed the complaint with the police immediately, but he has stated that he and PW1 went back to the house of PW1 only PW4 shifted the injured to the hospital. Thereby there is contradiction in the evidence of eye-witnesses PWs1 and 2. As per the evidence of PWs1 and 3, it is stated that the deceased was not in the habit of consuming alcohol, but Exhibit P22 depicts about presence of Ethane alcohol in the stomach of the deceased. The inpatient records reveals that it is manipulated, there are over-writings and inconsistencies. PW16 would depose that initially the injured was brought on the cause of accident, as mentioned in the inpatient records as RTA and subsequently, the same is overwritten and the same has been admitted by PW16 that he has changed the Inpatient number in the record and postmortem report. There are serious inconsistence about the injuries whether it is a single injury or two injuries. As per Exhibit P20, no bloodstains are found on MOs 9 and 10. Though there was a quarrel between the accused No.1 and the deceased earlier with regard to damage caused to the glass of car, it is not the case that the prosecution that after the incident occurred three months prior

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to the present incident, they were not in talking terms and if they were not in talking terms, there was no occasion to for one of the accused to call the deceased at 10.00 pm in the presence

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of his father. PW1 who is the father, when he suspected foul play, he could have stopped the deceased from going to the spot or would have accompanied his son to avoid the unfortunate incident. According to PW1 the son alone went by walk and was followed by PW1. But according to PW2, the deceased called him to accompany him to the Shyam Studio and thereby both went on the scooter of PW2 and thereby there is inconsistency in the evidence of PWs1 and 2.

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In Exhibit P19-sketch produced by the prosecution, the distance to between the place of incident and the Hospital is 64 feet and does not depict the place where the PW1 was standing and watching nor depicts any light. Thereby the evidence of PWs1 and 2 contending that it was dark, is corroborated with the sketch-Exhibit P19. As stated by the Doctor and Post-mortem report-Exhibit P1, the fact remains that the death of deceased is homicidal. According to Investigating Officer PW17, who recorded the voluntary statement of the accused as per Exhibits P28 to P30, who

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deposed the statement in verbatim that they had consumed alcohol and thereafter, called the deceased Yogesh and when Yogesh and PW2 came after five to ten minutes, they picked up quarrel with Yogesh and the deceased hurled and abused the accused singularly by using filthy language and thereby when he tried to assault the accused Harish with a boulder, accused No.3-Ravi tried to console the deceased and held him rightly and thereby the accused No.1-Hemanth assaulted the deceased and accused No.2 also assaulted the deceased with chopper and deceased fell down, and when the people started assembling, both the accused fled from the spot along with weapons in the car. The categorical statement made by the accused 1 to 3 clearly depicts that there were exchange of words and there was quarrel between the accused and the deceased with regard to previous enmity and when the deceased tried to assault the accused No.1 with a boulder, the accused No.3 caught hold of the deceased and in a spur of moment, the unfortunate incident happened. Though based on the voluntary statement there cannot be any conviction, but in view of the provisions of Section 25 of the Evidence Act, if a voluntary statement or corroborates with other circumstantial evidence in favour of the

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accused, there is no prohibition to rely upon the same. The provisions of Section 25 of the Evidence Act, in connection with voluntary statement has to be considered, that no confession made to a police officer under provisions of Section 161 Code of Criminal Procedure shall be proved against the person accused

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of any offence. It is pertinent to note that the said provision does not permit the use of it in favour of the accused. In majority of the cases, confessions are sought to be used only against the accused. The cases in which confessions are made against the accused, or can be used in favour of the accused is very few and there will be exceptions to general rule. In other words, when the accused stated they have murdered the deceased on provocation, the fact relating to the provocation can be used in their favour as Section 25 of the Evidence Act only prohibits using of confession against the accused and does not prohibit to use the same in favour of the accused.

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Applying the aforesaid principle and in the facts and circumstances of the present case, the voluntary statement made by the accused as per Exs.P.28 to 30 prima facie show that there was a quarrel between the accused and the deceased, which fact, was spoken to by P.Ws.2 to 4 and

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ultimately, the unfortunate incident has happened due to audacious manner of accusation of accused in filthy language and trying to assault one of the accused by the deceased, which

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aspect has not been considered by the learned Single Judge while passing the impugned judgment of conviction, convicting the accused for the offence punishable under the Section 302 of IPC., and sentencing them to undergo life imprisonment with fine stated supra.

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As the entire case of the prosecution is based on the evidence of the prosecution witnesses i.e., P.Ws.1 and 2, who are father and friend of the deceased as well as the interested witnesses whose versions are not consistent with regard to going to the scene of the incident, and as per their versions, there was a quarrel between the accused and the deceased, which has resulted in the homicidal death of the deceased by accused Nos.1 and 2 using material objects M.Os.9 and 10. It is pursuant to note that there are inconsistencies in the evidence of P.Ws.1 and 2 as there is no whisper about the presence of P.W.2 in the complaint, but an attempt has been made by P.W.1 to introduce for the first time in his evidence that he was present though he has not been cross-examined

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with regard to streetlight and a scratch, on the ground that both P.Ws.1 and 2 have specifically stated in examination-inchief that it was a dark night. It is also not in dispute that the statement of P.W.2 was recorded on 27.11.2014 when the incident occurred on 18.10.2012 after one month 9 days. Even the call details show that accused No.1 had called the deceased and in turn the deceased had been to the spot where he was asked to come, but admittedly, no call details are produced by the prosecution. So also Ex.P.23 the Medico Legal Case Register shows the alleged history of assault by group of 2 to 3 persons. The doctor P.W.16-Dr. Ramesh Ranganathan, has admitted in his cross-examination that as per Ex.P.23 at page No.9 initially it is stated that it was a case of Road Traffic Accident and thereafter, it was struck and changed as 'assault' instead of 'RTA'. Thus these discrepancies and inconsistencies are not considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence.

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Though the learned SPP submits that Ex.P.20 is a mahazar for seizure of a car, M.O.9-Long, M.O.10-chopper and M.O.11-Black colour bag on 28.10.2012, in order to seize the

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articles as contemplated under the Order 1287 of the Karnataka Police Manual, the requirement by law to be drawn up are when:

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"PANCHANAMA

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1287. (1) The only occasions on which a document which is popularly styled as a pachanama is required by law to be drawn up are when (i) some articles are seized in the course of a search of a place under Section 100(5) Cr.P.C. or (ii) an investigation into the cause of death is made under Section 174 Cr.P.C. The holding of panchanamas on other occasions is not a duty imposed upon a Police officer by law, though, in practice a Police Officer resorts to it as a mode of procuring independent evidence to corroborate the results of his own inquiry and observation. In such cases a panchanama by itself has no evidentiary value. It is merely a memorandum of what has been observed by the witnesses and the Investigating Officer, who are not to forget many of the details observed by them, in the interval between the events themselves and the day on which they are called on to testify to them in court. Hence, a panchanama is useful only as a

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piece of corroboration of the oral evidence of the witnesses (panchayatdars), the Investigating Officer (Section 157, Evidence Act) or as a memorandum of facts observed by them, which they may use to refresh their memory while giving evidence of those facts (Section 159, Evidence Act). For the latter purpose, it is essential that the person using the panchanama must either have written it himself immediately after having observed certain facts or must have personally read it soon after it was written up by someone else, and found it to be correct.

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(2) In view of the above legal position of panchanamas the witnesses to be selected, should be respectable and disinterested.

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(3) The witnesses should be present from the beginning to the end of the transaction.

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(4) The panchanama should begin with a mention of the full names age, occupation and address of the panchayatdars followed by a preamble explaining the purpose, for which the panchanama is being held. It should contain full and accurate statements of the articles or other relevant circumstances found and the exact spots at

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which they were found. It should state, clearly what articles, if any, were seized and from where they were seized. After it has been written up, it should be read over by or to the panchayatdars and they should be asked to sign it after they have admitted it to be a true account of what they observed. The name of the writer should be mentioned and his signature taken. The time when it was commenced and completed, the date and the place should also be mentioned in it.

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(5) The panchanama should be written up immediately at the place where the proceeding is held.

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(6) It should be held ordinarily during day time, but if the circumstances demand it, it may be held even during night time.

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(7) The panchanama should be written up carefully, so as to avoid the need for insertions or erasures. All erasures or insertions, if inevitable, should be initialled by the Panchayatdars.

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Form No. 131

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Order Nos.. 1327(2), 1286 and 1305

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LIST OF PROPERTY SENT TO MAGISTRATE

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Station……. Circle......

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1.	No. of property list and date
2.	No. of the case on police file
3.	Rank and name of police officer making seizure
4.	Descriptive list of property seized or found with value
5.	When and from whom seized or where found
6.	When, where and from whom stolen or nature of suspicious circumstances.
7.	Signatures of witnesses: (i) (ii) (iii)
		Signature of the Police Officer and designation Dated……………….
8.	Date of transmission of report to the Magistrate
9.	Orders of the Magistrate
10.	Acknowledgment of the Court Clerk for having received the property.
11.	Final disposal of the property

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Thereby the alleged Ex.P.10 recovery mahazar is not in consonance with the Orders stated supra.

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With regard to the sketch drawn, as already stated supra, there was no street light and the place of 100 ft. was also not visible as stated by P.W.1 in his evidence, but the same is not done in detail as contemplated under the Karnataka Police Manual as per Orders 1239(c), 1241, 1242(c), (e), (f) and (g), 1257, 1249 and 1250 (iii) and these discrepancies in the present case are not considered by the learned Sessions Judge.

¶224

On careful perusal of the material on record clearly depicts that, earlier to the present incident between the parties about three to four months back when the deceased Yogeesh had damaged car glass of accused No.1 and in turn, P.W.1 had paid a sum of Rs.10,000/- towards the damage and it ended the litigation. When one of the accused had called the deceased on the date of the incident, the accused would not have gone alone at about 10.00 p.m., if really there was any enmity as admitted by P.Ws.1, 2 and 4 that too when accused Nos.1 and 2 were friends, who used to come to the house of P.W.1 on festival days for break fast, lunch and dinner. It is pertinent to note that as soon as the accused had called the deceased, the deceased had visited the place along with P.W.2

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on the day when the unfortunate incident occurred when the deceased used filthy language against the accused persons and tried to assault one of the accused with stones. The said act provoked the accused and ultimately, the unfortunate incident happened. Therefore, this is not a case to impose extreme punishment for imprisonment for life and it falls under Exception I of Section 300 of IPC., which reads as under:

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“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

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Exception I – When culpable homicide is not

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murder .—

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When culpable homicide is not murder, if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

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On careful reading of the said provision makes it clear that culpable homicide is not murder, if the offender, whilst deprived of the power of self control by grave and sudden

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provocation, causes the death of the person, who gave the provocation or causes the death of any other person by mistake or accident. In the present case, as stated supra, the learned Sessions Judge has not considered the aspect that due to sudden provocation of the accused by the deceased, the deceased tried to assault one of the accused persons with a stone and thereby the accused persons were provoked by the words and filthy language used by the deceased to taunt them, suddenly attacked the deceased which has resulted in the death without premeditation in a sudden fight in the heat of passion upon a sudden quarrel as a consequence of which the death has happened. The said act is nothing but an offence of culpable homicide not amounting to murder and it clearly falls under Exception 1 to Section 300 I.P.C. Consequently, accused has to be convicted for the offence punishable under Section 304 Part-I of IPC., and not under Section 302 of IPC., and accordingly, the conviction of accused for the offence punishable under Section 302 of IPC., has to be altered to one under the provisions of Section 304 Part I of IPC.

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The evidence on record clearly establishes that the deceased and the accused persons were of young age, and the

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fact that the socio-economic condition of the appellants was below the poverty line, frustrated the accused which can be considered as one of the mitigating factors. While balancing the aggravating and mitigating factors, the circumstances are required to be considered and whether these persons have any possibility of reforming themselves in view of the incident. Immediately after the incident, when they showed anxiety about the assault made as soon as P.W.1 screamed and ran towards the spot, the accused along with weapons in their car escaped.

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Taking into consideration the totality of the facts and circumstances of the present case, we are of the considered opinion that the accused is found guilty of commission of offence of homicidal death of the deceased and that this is not a case where the accused have to be imposed with the extreme punishment of imprisonment for life and ends of justice would be met, if they are sentenced to undergo rigorous imprisonment for ten years with fine for the offence punishable under the provisions of 304 Part-I of IPC.

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Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Nanak Ram v. State of Rajasthan reported in (2014) 12 SCC 297 wherein at paragraphs-18, 19, 20 and 21 it is held as under:

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"18. It is true that the accused party had land dispute with the victim party. The Collector ordered conversion of subject land into abadi and on the applications made by Shivji Ram and his two brothers, pattas were issued as is evident from P-12, P-16, P-17, P-20, P-21 and P-24. Accused Bhera Ram preferred appeals against the grant of patta to the Panchayat Samiti at the first instance and they came to be dismissed and the revision preferred before the Collector was pending. PW 8, Sarpanch Dhura Ram and PW 5, record-keeper Hanuman Das have stated so. Thus the evidence shows that the accused party was desirous to get the subject land to themselves and were taking legal steps to achieve it. On coming to know of the fencing put by Shivji Ram and his brothers they were annoyed and went there to remove the fencing. While they were dismantling the fencing, Shivji Ram and his brothers came there and objected to it by saying that they

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have obtained patta and a sudden quarrel erupted.

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19. A fight suddenly takes place for which both the parties are more or less to be blamed and it is a combat whether with or without weapons. It may be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. Heat of passion requires that there must be no time for the passions to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Out of the 9 injuries, only Injury 1 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. The earlier disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel the accused persons had caused injuries on the deceased. That being so Exception 4 to Section 300 IPC is applicable. The fact situation bears great similarity to that in Ghapoo Yadav v. State of

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M.P. [(2003) 3 SCC 528 : 2003 SCC (Cri) 765]

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20. Looking at the nature of the injuries sustained by the deceased and the circumstances as enumerated above the conclusion is irresistible that the death was caused by the acts of the accused done with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304 IPC and the appellants would be liable to be convicted for the said offence. The conviction of the appellantaccused under Section 304 Part II read with Section 149 IPC by the High Court is liable to be set aside.

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21. We are of the considered view that imposition of 7 years' rigorous imprisonment on each of the appellants for the conviction under Section 304 Part I IPC would meet the ends of justice. We sustain the other conviction and sentences imposed on the appellants. We are also of the view that the appellants are not entitled for release on probation."

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CRL.A No. 822 of 2017 C/W CRL.A No. 1301 of 2017 CRL.A No. 605 of 2018

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The Hon'ble Supreme Court while considering the provisions of Section 302 and Exception I of Section 300 IPC., in the case of Dauram Nirmalkar -vs- State of Chattisgarh

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reported in Criminal Appeal No.1124/2022 reported in

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AIR 1022 SC 3620 at paragraphs-12, 13, 15 and 16 has held

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as under:

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12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of selfcontrol, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.12 The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the

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CRL.A No. 822 of 2017 C/W CRL.A No. 1301 of 2017 CRL.A No. 605 of 2018

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same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of selfcontrol. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately

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preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.

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13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused’ reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in 1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper ‘Cumulative Provocation and Partial Defences in English Criminal Law' Criminal LR 558-559, and George Mousourakis’s elucidation in his paper ‘Cumulative Provocation and Partial Defences in English Criminal Law’ Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 13 of 16 in the following words:

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“The significance of the deceased’s final act should be considered by

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reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased’s final act and the accused’s retaliation should continue to tell against him. The point is that the significance of the deceased’s final act and its effect upon the accused – and indeed the relation of the retaliation to that act – can be neither understood nor evaluated without reference to previous dealings between the parties.”

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Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final

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provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.

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15. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of selfcontrol on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of

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self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control.

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16. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC."

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Though the other contentions urged by the learned Counsel for the parties with regard to scratch, the version of the doctor and recovery of material objects M.Os.9 and 10, the fact remains that in consequence of the act of the accused, the homicidal death of the accused has resulted, which is not in dispute.

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In view of the above, considering the peculiar facts and circumstances of the present case and on re-appreciation of the entire material and documentary evidence on record and in the light of the principles enunciated by the Hon’ble Supreme Court in the judgments stated supra, we answer point No.1 raised in the present criminal appeal partly in the affirmative

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holding that accused Nos. 1 to 3 have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting them for the offence punishable under

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the provisions of Section 302 r/w Section 34 of the IPC., and sentencing them to undergo imprisonment for life with a fine of Rs.5,000/- with default clause requires modification and the said conviction is altered to one under Section 304 Part-I of IPC., and they are sentenced to undergo rigorous imprisonment for a period of Ten years with fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) each and in default of payment of fine, they are liable to undergo further two years simple imprisonment.

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Since this Court has come to the conclusion that

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accused persons have caused the death of the deceased in a spur of moment due to provocation by the deceased, in view of the provisions of Exception I of Section 300 of IPC., the case clearly falls under Section 304 Part-I of IPC., we answer Point No.2 partly in the affirmative holding that the learned Sessions Judge was not justified in convicting and sentencing the accused to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC and as such, it is

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hereby modified and is altered to one under Section 304 Part-I of IPC.

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In view of the above, we pass the following:

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ORDER

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i) (a) Criminal Appeal No.822/2017 filed by accused No.1 (b) Criminal Appeal No.605/2018 filed by accused No.2 (c) Criminal Appeal No.1301/2017 filed by accused No.3

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are allowed in part;

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ii) The impugned judgment of conviction dated 19^th April, 2017 and order of sentence dated 21^st April, 2017 convicting accused Nos.1 to 3 for the offence punishable under Section 302 r/w 34 of IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) each and in default of payment of fine, each of them are sentenced them to undergo further simple imprisonment for six months is hereby modified ;

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iii) Accused Nos. 1 to 3 are hereby convicted for the offence punishable under the provisions of Section 304 Part I of IPC and sentenced to undergo imprisonment for a period of Ten years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) each, in default of payment of fine, each of them to undergo simple imprisonment for a further period of Two years;

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iv) On such deposit of fine amount of Rs.75,000/(Rupees Seventy Five Thousand only) by the accused, in view of the provisions of Section 357(3) of the Code of Criminal Procedure, an amount of Rs.70,000/(Rupees Seventy Thousand only) shall be kept in fixed deposit initially for period of three years in any of the Nationalised Bank in the name of P.W.1-Sri Suresha, father of the deceased-Yogeesh and he is entitled to withdraw the interest accrued on the said amount accrues; The remaining amount of Rs.5,000/- (Rupees Five Thousand only) shall vest with the State towards defraying expenses;

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v) The learned District Judge shall ensure prompt payment of the compensation amount to the father of the deceased, on proper identification;

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vi) The appellants/ accused are entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure;

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vii) The accused shall be released forthwith on deposit of fine amount, if they have already undergone the period of sentence imposed and if not required in any other case;

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viii) The Sessions Court is directed to secure the presence of accused No.2 for undergoing the remaining period of sentence imposed by this Court including the period of sentence already undergone;

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ix) However, it is needless to observe that accused No.2 can claim for remission in accordance with law;

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x) We hope and trust that the accused persons shall reform themselves and ensure in becoming good citizens of this Country instead of indulging in criminal activities in rest of their life; and

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xi) Registry is directed to return the Trial Court Records, forthwith.

Sd/-

JUDGE

Sd/JUDGE

Paragraph Nos. 1 to 24 ..LNN 25 to end ..Nsu/-

Harish Kumar v. the State of Karnataka

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Harish Kumar v. the State of Karnataka

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